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Trademark and copy right laws with design parodies

I am working on a graphic design project and I was wondering if anyone knew the line of using an imitation/mockery of a trademarked product for commercial use. An example would be, using super mario brothers but putting a modern spin of having them jump through say san francisco. another example could be taking the periodic table and plugging in adobe products instead of the elements.

thoughts?

15 Replies

John Adolph
0
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John Adolph Entrepreneur
♫ "Some people call me the firm lawyer / Some call me the startup CEO / No people call me Maurice"
Are you looking to profit off this or is it more in the line of an artistic project?
Joel Magalnick
3
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Joel Magalnick Entrepreneur
Storyteller. Innovator. Leader.
Regardless of where the line is - and courts have generally ruled in favor of the brands being mocked if it comes to commercial enterprises - if you were to create a campaign that used Mario Brothers, you'd have so many cease and desist letters you wouldn't be able to see straight. Companies like Nintendo and Adobe are very, very protective of their brands.
Bill Kelley
0
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Bill Kelley Entrepreneur • Advisor
Business Mentor
Not a chance.

http://en.wikipedia.org/wiki/Superstar:_The_Karen_Carpenter_Story
Sean McBeath
4
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Sean McBeath Entrepreneur
Founder, Mechanical Engineer at Igor Institute
The legal term that you're looking for is "derivative work." If a work is deemed to be substantially different from the original, it can be protected under this type of copyright. (The other way something like this might be covered is under a "fair use" exception; while these are mostly to allow for discussion and criticism of copyrighted materials, satire and parody are sometimes covered.)

But, as Joel points out, the American copyright system is basically written in favor of and controlled by companies with strong brands (Disney being the prime example).
Antonio Rocha-Ferreira
1
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Antonio Rocha-Ferreira Entrepreneur
Turning data into products
1st: where to use? Doing what and in what way? Design parodies? What audience? Jurisdiction (where are you, the brand and the product) also plays a key role in all of this.

From an entrepreneurs view Its simple: for a limited audience, to make a point, ok. Can be acceptable and the possibility of backfiring is not that much. Worth the risk.

For commercial use, depends if you wanna risk a lawsuit or not. A single lawsuit can ruin a company in a second. Depending on where that company is registered, of course :D

Some of the exemples you mention (brands) are highly susceptible to causing problems. Others (periodic table) are not so much, because they are free knowledge.

I have found out that exact copies cause usually problems. "Blurred" visions, only using core concepts is usually less risky. Even if Mario is not very perceptible if I see a little guy running with "mario colours" my brain will perceive that. I recognise thats not the one, even that you are using it, but just different enough to not get caught. I've seen this example before and it worked.

One thing thats also important is to search the web before, try to understand the behaviour of the their legal department. Finding some cases is also helpful because the rulings will have the "boundaries" written all over.
If they are very active I wouldn't go for it.

If your product depends on other brands to "work", I would strongly advise you to sought a professional before any launch. You don't want to spend a lot of money just to discover you burned it.
Bruce Leban
3
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Bruce Leban Entrepreneur
Software developer, inventor, innovator
The periodic table isn't owned by anyone, much less a corporation with more lawyers than you. Not true for Mario.

In the US, there are four factors to be considered for determining fair use, but there's no bright line dividing fair use from infringement. https://en.wikipedia.org/wiki/Fair_use

Parodies may be given more leeway but "a modern spin" doesn't sound like a parody to me, since it's primary purpose wouldn't be making fun of Mario or Nintendo.
Julie Krafchick
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Julie Krafchick Entrepreneur
Digital Media Professional: Design, Marketing, Startups
Thank you all for your help. This would be for commercial use (so to make a profit). The project I am working on doesn't rely on this, it is just one outlet I was looking to explore. I am also based out of San Francisco but my LLC is in Delaware. They would be sold online on consumer gear such as glasses, ipad cases, etc.

Does anyone know about quotes? for example, movie quotes or also utilizing characters names?

Leena Chitnis, MBA
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0
Leena Chitnis, MBA Entrepreneur • Advisor
Content & Publication Manager at NetApp
If it's for a school/academic/personal project, no problem. But if it's public and/or makes money, you can get sued.
Leena Chitnis, MBA
0
0
Leena Chitnis, MBA Entrepreneur • Advisor
Content & Publication Manager at NetApp
I worked in Hollywood for a decade and that is probably one of the most litigious industries known to mankind. If you are using movie quotes you can get sued by the author or whoever owns the script at that point (a studio). Always footnote whenever borrowing anything proprietary, but never use it for profit. You can always check with the WGA (Writer's Guild) or even talk to an entertainment attorney. Entertainment attornies charge you for like two seconds of their time, so if you want free counsel, just post a question on a LinkedIn forum where they congregate.
Bruce Leban
0
0
Bruce Leban Entrepreneur
Software developer, inventor, innovator
More accurately, if you use someone else's work, you can get sued, period. Sure for personal/academic/personal project, the odds of getting sued may be low.

I can't help you if you don't think Nintendo will be upset if you put Mario on a cable car and sell it....

As to quotes, I think (IANAL) it's much easier to pass the fair use test for isolated quotes -- even well-known ones -- used for non-commercial purposes. For example, I'll cite "Go ahead, make my day" as a good example of a well-known quote, and I think that my chances of being sued for that are fairly low. But if I were to name my day spa: "Go ahead, make my day spa" I would not be at all surprised to get a cease and desist from someone. Ditto for selling it on ipad cases.
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